The ratification process for the Algonquin agreement in principle is an example of what is wrong with Canada’s approach in land claims and self-government negotiations.

Prime Minister Justin Trudeau and Indigenous Affairs Minister Carolyn Bennett both need to sit down and think hard about what reconciliation and nation-to-nation means, following the recent signing of an agreement in principle (AIP) on a major land claim.

Bennett called the signing of the Algonquin AIP “a momentous milestone and a significant step forward on renewing Canada’s relationship with the Algonquins of Ontario.” Was it? And further, a person has to wonder, as I do, why Anishinabek Nation Grand Council Chief Patrick Madahbee thinks this is an occasion worthy of congratulations?

The agreement would offer the Algonquins of Ontario 1.3 percent of their land base in eastern Ontario, or 36,000 square kilometres, as part of what’s been termed a “modern treaty.” The Algonquins never ceded their land, which includes the area where Parliament Hill now sits.

Last winter, two separate votes were held on the ratification of the Algonquin AIP – one by the Algonquins of Ontario (AOO), with its enrolled and primarily nonstatus members, and the other by Pikwàkanagàn First Nation Indian status band members. The stated purpose of the vote was to determine whether there was Algonquin support for the continuation of negotiations based on the proposed AIP. Make no mistake, the amount of land gained and the financial element of the final agreement are the most important, as it is only through having jurisdiction of our land and resources that we will be able to begin to rebuild our communities in genuine ways that speak to our governance traditions and values.

The larger AOO vote was held from February 29, 2016, through March 17, 2016, and the tally was published. A press release stated there was a total of 7,540 eligible enrolled AOO voters. Of this number, 3,575 ballots were cast. In other words, less than half of the eligible voters cared enough to vote: 47 percent. Of this 47 percent it is said that 90 percent voted in favour of supporting the proposed AIP, and thus for the continuation of the land claims process that will eventually lead to a final agreement. Keep in mind that these numbers do not represent the Pikwàkanagàn members who opted not to vote within the larger AOO vote.

On March 5, 2016, Pikwàkanagàn First Nation held a separate, parallel referendum vote for 330 status band members who, for whatever reason, were not enrolled with the AOO process, or who opted out of voting under the AOO umbrella: the tally was 243 against and 87 in favour of supporting the AIP. Of the status band members who chose to remain within the larger AOO vote, their voting profile was 84 against and 159 in favour. This brings the total of status member votes, which includes on- and off-reserve people, to 327 against and 246 in favour. According my calculations, 57 percent of status Algonquin voted against supporting the AIP.

Based on these numbers we can clearly determine that status Algonquin Anishinaabeg members do not support the continuation of negotiations of the proposed AIP. The Pikwàkanagàn chief and council have said future talks will address concerns around the prospect of individuals losing their tax exemption treaty right and yet-to-be-negotiated self-government. It’s unclear whether these concerns will indeed be taken seriously.

The ratification chapter in the AIP is of particular interest. Subsection 15.2.4 states: “The Agreement-in-Principle shall be considered to be ratified if a majority of the Algonquin voters who cast their Ballots vote in favour of the Agreement-in-Principle. Failure to ratify the Agreement-in-Principle may result in the termination of negotiations. The Parties shall, in any case, assess the result of the Ratification Vote to determine the likely success of further negotiations.”

There are at least three reasons why this Algonquin AIP ratification subsection is pitiful.

First, what constitutes a majority is not explicitly stated, nor is it a defined term in the chapter of definitions in the AIP. We can assume it is 50 percent of the votes plus 1 vote, but we really do not know for sure. I am in no way suggesting that such a poor definition of majority can be relied upon, rather I offer it because it is a common definition found in Western democracies. I believe a majority should be defined as 75-80 percent. Certainly 50 percent of the votes plus 1 is not enough.

Second, another issue that makes this ratification subsection of the AIP flawed is the statement that regardless of the results, the parties hold the option to move forward with the continuation of negotiations. And, yes, that is exactly what they did, with a 47 percent voter turnout and with 57 percent of Pikwàkanagàn band members voting against it.

Okay, I get it that some people may be thinking that although the status Algonquin voted against the AIP at a rate of 57 percent, 90 percent of the other voters did vote in favour of the AIP. My thinking, however, is that a 47 percent voter turnout clearly is not a ringing endorsement of the proposed AIP or, for that matter, of continuing negotiations. And it is not at all democratic.

The third reason this ratification subsection of the AIP is pitiful is that, along with a clear definition of what a majority of votes is, a voter turnout threshold is required. And this, too, has to be clearly stated in the ratification chapter. This is commonly known as a two-stage ratification process, where the threshold must also be achieved for the outcome to be interpreted as a successful ratification.

If the purpose of the AIP vote was to take the temperature of the electorate — meaning to determine if there was support and thus secure the continuation of negotiations — why not codify in the AIP a voter- turnout-threshold requirement? Specifically, why not have a subsection in the ratification chapter that specifies that 80 percent of eligible voters must cast their vote before it would be considered successfully ratified as either a yes vote in favour of the AIP or a no vote against it?

When 47 percent of voters are allowed to shape the process, this mean the AIP has a ratification criterion that is set up in a way where the Algonquin people who rightfully opt not to vote, because they refuse to have their agency manipulated by a colonial process, are in effect counted as “yes” votes. The manipulation of abstainers as, in effect, “yes” votes is hardly a valid way of testing the waters. What this represents is manipulation, and it certainly is not democracy.

What I am arguing here is that a two-stage ratification process must be incorporated into the AIP and also final land claim agreements. The first stage would establish the threshold of a successful ratification, such as an 80 percent voter turnout. The second stage would explicitly define what a majority actually means, such as 80 percent of the voters must vote in favour of the AIP for it to be a successfully ratified.

A two-stage ratification process may be the best way to encourage voter turnout and therefore increase the legitimacy of the process, rather than the mockery it is. Using this hypothetical example of a two-stage ratification criteria, the current 90 percent yes vote cast by only 47 percent of eligible voters is a clear failure to ratify.

The recent Algonquin AIP ratification process is hardly a valid way of testing the waters, nor does it reflect the real mean of nation-to-nation and reconciliation. This pitiful ratification process is yet another issue within the larger context of all that is wrong with Canada’s approach to land claim and self-government negotiations.

Photo: Elena Elisseeva / Shutterstock.com

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Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe. She is an outspoken critic of colonial law and policies that harm Indigenous women, children, and the land. She has a new book coming out in August 2017, published by the University of Regina Press, titled, Claiming Anishinaabe: Decolonizing the Human Spirit. See more of her work at: www.lynngehl.com

Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe. She is an outspoken critic of colonial law and policies that harm Indigenous women, children, and the land. She has a new book coming out in August 2017, published by the University of Regina Press, titled, Claiming Anishinaabe: Decolonizing the Human Spirit. See more of her work at: www.lynngehl.com